A judgment ordered for the defendant upon an agreed statement of facts, which showed that the mortgage in suit was given to secure the payment of a sum of money by a husband to his wife, under a collusive agreement for obtaining a divorce in her favor, is not conclusive against the right of the wife, after such divorce has been decreed, to recover alimony from the husband. Nor is the adultery of the wife, both before and after such divorce, a legal bar to the granting of alimony upon her petition subsequently brought.
CLARK, J.
Cross v. Cross, 58 N.H. 373, was a writ of entry, and the matter in issue was the title to the demanded premises, which depended upon the validity of the plaintiff's notes and mortgage. Upon an agreed statement of facts, that the notes and mortgage were made in pursuance of a collusive agreement for obtaining a divorce, it was held that the notes and mortgage were illegal and void, and the defendant had judgment.
This proceeding is a petition for alimony, and the matter in issue is, whether the plaintiff is entitled to a share of the property. The cause of action and the matter in controversy are not the same as in the former action, and the former judgment is neither a bar to the plaintiff's right of recovery in this proceeding, nor is it conclusive that the divorce was obtained by collusion. A former judgment is conclusive only as to facts in issue. It is not conclusive as to facts which are merely evidence. Metcalf v. Gilmore, ante, 174, 187; King v. Chase, 15 N.H. 9. The referee now finds that the assumed statement of facts in the former trial was erroneous, and that there was, in fact, no collusion between the parties in obtaining the divorce, and the evidence was properly received.
There is no question as to the power to grant alimony in this case. Upon proper application and notice, the court may revise and modify any order made, and make such new orders as may be necessary respecting alimony. G. L., c. 182, s. 15; Ela v. Ela, ante 116, 121, and cases cited. Adultery committed by the plaintiff before or after the decree of divorce is not, as matter of law, a bar to this petition. The plaintiff may have earned the property, and justice may require a division of it, although both parties are corrupt. Whether the plaintiff is entitled to alimony is a question of fact.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.